In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Thursday, 29 June 2017

Readers of this blog may
remember that the Paris Court of Appeals found in October 2015 that the
staging of the opera Le Dialogue des
Carmélites by Dmitry Chernyakov for the Munich Opera in 2010 violated the
moral rights of composer and librettist Francis Poulenc, which adapted the eponymous
theatrical play by Georges Bernanos.

Le
Dialogue des Carmélites tells the story of French
aristocrat Blanche de la Force who decides to enter the Carmelite Convent,
possibly to be sheltered from life, as she is fearful and shy. The French
Revolution upset her world and the Carmelites must leave the convent. Blanche
leaves the congregation to return to her family. When the Carmelites are
arrested and sentenced to death by the revolutionary tribunal, Blanche returns
to them as they are each climbing the steps to the guillotine, and she is the
last one to have her head cut off.

Dmitry Chernyakov had not modified the
score or the dialogue. However, his interpretation did not take place during
the French revolution, but in contemporary time. In the last scene, the
Carmelites are locked up in a shed full of explosives. Blanche appears on the
scene and pulls them all out to safety, one by one. She then comes back to the
shed which explodes, killing her, an apparent suicide.

The heirs of both Francis Poulenc and
Georges Bernanos had sued Dmitry Chernyakov and the Munich Opera, claiming a
violation of their moral rights, which are which are perpetual and transferable
upon death under Article
L. 121-1 of the French intellectual property code. The Paris Court of Appeals
had ruled in their favor, finding that the scenography profoundly modified the
final scene and distorted its spirit. The DVD of the play could no longer be
sold.

The director and the Opera took the case to
the Cour de cassation, France’s highest
civil court. The heirs argued in defense that “if a certain freedom can be recognized for the director to performance
his work, this freedom is limited by the moral right of the author to the respect
of the integrity and spirit of his work, which must not be denatured.”

But the Cour
de cassationjust
‘broke’ this holding on June 22. The Court reasoned that the Paris Court of
appeals had noted that “the contested
staging did not modify the dialogue, absent in this part of the preexisting
work, nor the music, even going so far as to reproduce, along with the
religious songs, the sound of the guillotine which rhythms, in the Francis
Poulenc opera,each death, and that the
end of the story, as staged and described by Dmitry Chernyakov, respected the
themes of hope, of martyrdom, of grace and transfer of grace and of the
communion of saints dear to the authors of the original work, [and that therefore] the Court of appeals did not draw the legal consequences of its own
findings and violated [article L. 113-4 of
the French intellectual property code.]”

Article L.113-4 of the French intellectual property
code states that “[t]he composite work is the property of the
author who created it, subject to the rights of the author of the pre-existing
work.”

In our case, the staging of the opera is a
composite work, subject indeed to the rights of the authors of the pre-existing
work, the opera. Such rights include moral rights. But the staging, as a
composite work, is also a work on its own, protected by article L. 113-4. Since
it does not infringe on the rights of the authors of the original work, their
rights had not been violated.

This ruling is not surprising, as the Cour decassation had held on May
15, 2015, that a Court of Appeals must explain “in a concrete manner how searching for the right balance between the
rights [of the author of the original
work and the rights of the author of the composite work] justified the sentence it had pronounced.”

The Cour
de cassation also cited Article 10, § 2, of the Convention for the
Protection of Human Rights and Fundamental Freedoms. Protecting freedom of
expression, to find that the Court of appeals erred in forbidding the sale of
the DVDs of the opera and its broadcast, because it should have examined “what in the search for a fair balance
between the director's freedom of creation and the protection of the moral
rights of the composer and the author of the libretto justified the prohibition
order it ordered.”

The Versailles Court of Appeals will not
review the case again and will likely rule in favor of the director, and thus
preserve his freedom to create and to express himself. Moral rights are often viewed
in the U.S. as a way to censor creativity, and the 2015 Paris Court of appeals
ruling certainly provided grounds for this view.

Sunday, 18 June 2017

Readers will remember that a couple of
years ago this blog wrote that the Paris Tribunal de Grand Instance (TGI) had
excluded that the well-known portrait of Jimi Hendrix realised by Gered Mankowitz would
be eligible for copyright protection.

1709
Blog friend and University of East Anglia academicSabine Jacqueshas an update to report, this being
the rather different outcome of the appeal decision in this case earlier this
week.

Here's
what Sabine writes:

“After the surprising judgment of the TGI
Paris, the Paris Court of Appeal reversed the first instance decision with a ruling
delivered earlier this week.

In this case, an electronic cigarettes and
accessories sales company had reproduced and altered the famous portrait of
music legend Jimi Hendrix taken by Gered
Mankowitz for commercial advertising purposes. The defendant depicted Jimi
Hendrix smoking an electronic cigarette
instead of a real cigarette to
promote its products. Having been made aware of this unauthorised use, Gered
Mankowitz and his assignees decided to sue the electronic cigarettes sales
company for copyright infringement.

Let’s rewind
back to May 2015…

The decision of the TGI created somewhat a
seismic shock amongst practitioners and photographers as without expressly
acknowledging it, the High Court seemed to have interpreted the originality
criterion as being based upon artistic merits, thus going against Recital
16 Directive 2006/116/EC on the term of protection of copyright. Indeed, as
the black & white portrait featured the artist front-facing, with his waist
forward, exhaling smoke while bearing a half-smile and having his eyes half-closed,
the TGI was not convinced that the resulting work stemmed from the choices made
by the photographer instead of reflecting the artist’s own personality.

The TGI relied on both the Infopaq (Case
C-5/08) and Painer (Case
C-145/10) decisions. As a reminder, a work will be deemed original if it
represents the author’s own intellectual creation (Infopaq at [35]; Painer
at [88]). In relation to photographs, originality can be derived from the
numerous choices made by the author such as the subject, subject’s posture,
background, framing, lighting, time of the shooting, camera settings,
development techniques, device used, editing techniques, etc which can all reveal
the author’s own personality (Painer
at [91]). Here, the TGI held that the description of the author’s contribution
provided by the photographer was commonplace and could not be attributed to the
photographer without doubt. Therefore, based on the evidence submitted, the TGI
held that it could not appreciate originality, nor did it provide the
opportunity for the defendant to dispute this point.

Fast forward to June
2017…

Reversing the TGI decision, the Paris Court
of Appeal decided that the photograph was original and that, by using the
altered copyright-protected work to commercially promote their products online
and in two brick-and-mortar shops, the electronic cigarettes sales company had infringed
copyright.

The Court of Appeal confirmed that the
person claiming to have been copyright protection bears the burden of
proof.In other words, the photographer would
need to demonstrate where the originality lies in the portrait. Mr Mankowitz
therefore explained that he had organised the shooting in 1967 and directed the
rock star in terms of position and angle. The use of a specific camera and lens
was deliberate to create a wide-angle effect without distortion. Moreover, the
lightning, background, framing and angle of capture all resulted from
deliberate choices made by the photographer, embodying the expression of his
own personality.

Additionally (and perhaps surprising for
readers outside France), the Court of Appeal paid attention to the fact that
the photographer was internationally famous. As Mankowitz’s photographs are
equally well known, Jimi Hendrix’s portrait was deemed original.

Finally, in relation to the infringing acts,
the Court of Appeal held that the unauthorised reproduction and alteration of
the protected work for promotion purposes fell within the exclusive rights of
the author (L. 122-4 French Intellectual Property Code).

Remarks

While the outcome reached by the Court of
Appeal was expected, the litigation demonstrates that the originality criterion
is still developing in copyright legislation. By requiring, the right kind of evidence to be submitted,
French courts seem to demand that photographers deconstruct an image in a way
which can be at odds with creative processes. However, the take home message
for practitioners is perhaps to rely only on the deliberate choices made by a
photographer for the purposes of satisfying the originality requirement in
front of courts.

Besides, this case is interesting insofar as
the Court of Appeal took into consideration the reputation of the photographer
to determine originality. It is not the first time that French courts consider
the reputation of the original author relevant for the application of copyright
law. While it is undeniable that the portrait of Jimi Hendrix is original, one
might wonder whether French courts believe that well-known works are more
deserving of copyright protection than others. As this blogger is currently turning
her thesis on the parody exception into a monograph, some French decisions directly
come into mind. For example, inSociété Moulinsart, Mm Fanny R. c/ Eric J.
(decision in French here),the TGI Paris refused the application of the parody
exception where the defendant depicted the famous comic character Tintin in scenarios being the antithesis of the world created
by its author, Hergé. Although attempting to refrain from assessing the
work’s artistic merits, French courts seem less lenient where a parody
comments a work considered to be part of the cultural heritage, even if the
rules of the genre appeared to be respected.

Finally, the use of the Jimi Hendrix’s
portrait was for commercial advertising purposes. Given the context and the
captions joint to the reproduction of the work, consumers could have been led
to believe that the use had been authorised or the products endorsed by the
right-holders. Therefore, the Court of
Appeal was correct in deciding that the use of
works for commercial advertising purposes, even if these are altered, should
require permission. And this, even if the use had been for a parodic purpose…”

Wednesday, 14 June 2017

Drake, along with his record labels and music publishers, have won a difficult lawsuit that had claimed his song “Pound Cake/Paris Morton Music 2” which featured on the 2013 album “Nothing Was the Same” sampled a 1982 spoken-word recording titled the “Jimmy Smith Rap.”The use complained of is where Deake used a cut down version of lyrics spoken by jazz musician James Oscar Smith which originally read “Jazz is the only real music that’s gonna last ..... All that other bulls**t is here today and gone tomorrow. But jazz was, is and always will be.” Drake's version is “Only real music’s gonna last .... All that other bulls**t is here today and gone tomorrow.”Drake's record label engaged a music licensing company to obtain all necessary licenses. They obtained a license for the use of the sound recording of “Jimmy Smith Rap” but clearing the composition became problematic. The Estate maintained it would not have granted a license for the composition because JSmith “wasn’t a fan of hip hop.”District Court judge William H. Pauley III has now isssued a summary judgment for the defendants and against the Estate of James Oscar Smith, and found that there is no liability for copyright infringement. Judge Pauley found that the key phrase in Smith’s song “is an unequivocal statement on the primacy of jazz over all other forms of popular music” and that Drake’s use (by contrast) “transforms Jimmy Smith’s brazen dismissal of all non-jazz music into a statement that ‘real music’ with no qualifiers, is ‘the only thing that’s gonna last.'” Thus the judge adds, the purpose is “sharply different” from the original artist’s and is transformative, and “This is precisely the type of use that ‘adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning or message”.Judge Pauley also noted that whilst in many cases of parody the average observer would need to identify the target of derision, it’s not a universal prerequisite for a finding of transformative use, commenting that Drake used Smith’s work as “raw material” for new work. The judge also comments that the use of “Jimmy Smith Rap” was transformative regardless of whether the average listener would identify the source and comprehend Drake’s purpose.Original work here https://www.youtube.com/watch?v=pdbvOqeBkq8http://variety.com/2017/music/news/drake-sampling-lawsuit-jimmy-smith-copyright-jazz-1202449097/See also Abilene Music, Inc. v. Sony Music Entertainment, Inc., 320 F. Supp. 2d 84 http://law.justia.com/cases/federal/district-courts/FSupp2/320/84/2468802/ (The 'Wondeful World' case )and Acuff Rose Music v Campbell (1994)https://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc. (the Pretty Woman case)

Is there a communication to the public within the meaning of Article 3(1) of the InfoSoc Directive by the operator of a website [The Pirate Bay, TPB], if no protected works are available on that website, but there is a system therein by means of which metadata on protected works is indexed and categorised for users, so that these can trace and upload and download the protected works? Does Article 8(3) of the InfoSoc Directive allow the issuing of an injunction against an ISP ordering it to block access for its users to an indexing site like The Pirate Bay?

These were the important questions that the Dutch Supreme Court (Hoge Raad der Nederlanden) had referred to the Court of Justice of the European Union (CJEU) inStichting Brein v Ziggo, C-610/15(also known asThe Pirate Baycase).

The AG Opinion

In hisOpinionin February last[commentedhere, here, and to some extenthere]Advocate General (AG) Szpunar answered both questions in the affirmative.

With particular regard to the first question the AG, while holding the view that the present case would be different from the (at the time) most immediate 'precedent'[formally, there is no system of precedent at the CJEU level], ieGS Media[Katpostshere], also appeared to embrace a broader understanding of what amounts to an act of communication to the public.

In particular, in line with the December 2016 Opinion of AG Campos Sánchez-Bordona[here]inFilmspeler, C-527/15[subsequently confirmed by the CJEU:hereandhere], AG Szpunar construed Article 3(1) of the InfoSoc Directive in a broader way than what, for instance, both AG Wathelet and the CJEU had done inGS Media.

In fact - similarly to AG Campos Sánchez-Bordona inFilmspeler- AG Szpunar moved away from a (strict) requirement of 'indispensable intervention' towards an idea of communication to the public as 'facilitation'. Not only those whose intervention to make copyright works available to the public is indispensable could be regarded as making an act of communication the public, but also those whose intervention merely facilitates the finding of such works.

From this 'relaxation' of the notion ofwhocan be regarded as making an act of communication to the public, the AG reached the conclusion that TPB operators would indeed facilitate the finding of copyright works unlawfully made available by third parties. Their acts would therefore fall within the scope of Article 3(1) of the InfoSoc Directive. From the point of view of a national court, TPB operators would be thus primarily liable for copyright infringement.

[For a more detailed discussion of the relationship betweenGS Media, and the AG Opinions inFilmspelerandZiggoas regards the construction of the right of communication to the public, see this longer contribution of mine here]

The CJEU decision

This morning the CJEU held the making available and managing an online platform for sharing copyright-protected works may constitute an infringement of copyright. Even if the works in question are placed online by the users of the online sharing platform, the operators of that platform play an essential role in making those works available.

The decision is not yet available on the Curia website, but according to thepress release:

“In today’s judgment, the Court holds that the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive.

The Court first draws attention to its previous case-law from which it can be inferred that, as a rule, any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’ for the purposes of the directive.

In the present case it is common ground that copyright-protected works are, through ‘The Pirate Bay’, made available to the users of that platform in such a way that they may access those works from wherever and whenever they individually choose.

Whilst it accepts that the works in question are placed online by the users, the Court highlights the fact that the operators of the platform play an essential role in making those works available. In that context, the Court notes that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users. ‘The Pirate Bay’ also offers — in addition to a search engine — categories based on the type of the works, their genreor their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter some content.

The Court also highlights that the protected works in question are in fact communicated to a public.

Indeed, a large number of Ziggo’s and XS4ALL’s subscribers have downloaded media files using ‘The Pirate Bay’. It is also clear from the observations submitted to the Court that the platform is used by a significant number of persons (reference is made on the online sharing platform to several tens of millions of users).

Moreover, the operators of ‘The Pirate Bay’ have been informed that their platform provides access to copyright-protected works published without the authorisation of the rightholders. In addition, the same operators expressly display, on blogs and forums accessible on that platform, their intention of making protected works available to users, and encourage the latter to make copies of those works. In any event, it is clear from the Hoge Raad’s decision that the operators of ‘The Pirate Bay’ cannot be unaware that this platform provides access to works published without the consent of therightholders.

Lastly, the making available and management of an online sharing platform, such as ‘The Pirate Bay’, is carried out with the purpose of obtaining a profit, it being clear from the observations submitted to the Court that that platform generates considerable advertising revenues.”

A more detailed analysis will be provided when the text of the judgment becomes available: stay tuned!

Thursday, 1 June 2017

This morning the Bundesgerichtshof (BGH, the German Federal Court of Justice) has referred not one - but two - copyright cases to the Court of Justice of the European Union (CJEU) for guidance, respectively, on:

To what extent EU copyright allows sampling, ie the taking of part of a sound recording for re-use as an instrument or sound recording in a different song or piece [readers with an interest in hip-hop will know that sampling in this genre is very frequent and in the US has caused quite a few IP-related headaches to the likes of Kanye West and Jay Z]; and

What role fundamental rights play in the copyright sphere. More specifically, what is the relationship between copyright protection, freedom of the press, and freedom of information?

WARNING: I do not speak German, and have tried to make a sense of these new cases by reading the relevant press releases; please let me know if I have misunderstood anything.

Sampling, free use, a 'right' to quote, and fundamental rights

The first reference (I ZR 115/16 - Metal auf metal III) has been made in the context the longstanding and complex [at some point the case even ended up in front of the German Constitutional Court] Metall auf Metall litigation concerning the unauthorised sampling by music producer Moses Pelham of a 2-second rhythmic sequence from Kraftwerk's 1977 song 'Metall auf Metall' for use in his own 1997 'Nur Mir'. The sample features in 'Nur Mir' (performed by Sabrina Setlur) as a continuous background loop.

Following a number of lower courts' decisions [the first one was issued in 2004], as well as the already mentioned instalment before the Constitutional Court, the case is now pending before the BGH.

Today, this court decided to stay the proceedings and seek guidance from the CJEU on the correct interpretation of EU law. More specifically - and as explained in the relevant press release - the BGH is asking:

Guidance on the notion of reproduction in part in relation to phonograms as per Article 2(c) of the InfoSoc Directive[readers will recall that the CJEU has already interpreted generously the notion of 'reproduction in part' in its seminal decision in Infopaq] in order to determine whether a 2-second sample may fall within the scope of the right of reproduction; and

Whether the widely discussed German 'free use' exception within Section 24(1) of the German Copyright Act ("An independent work, created in the free use of the work of another person, may be published and exploited without the consent of the author of the work used.") is compatible with EU law;

Should the defendants be unable to rely on the 'free use' exception, whether the quotation exception within Article 5(3)(d) of the InfoSoc Directive might nonetheless shield them from liability [readers with an interest in this defence will be aware that there is hardly an EU quotation exception, as different Member States have transposed Article 5(3)(d) in very different ways: see for instance this discussion of whether GIFs could be regarded as quotations]. In particular, the defendants in the national proceedings are arguing that quotation is a 'right', rather than just an exception. Although I am only relying on the press release, I suspect that the defendants' argument might be also based on the language of Article 10(1) of the Berne Convention, which - especially in its French version - seems to suggest a mandatory quotation exception [see further here, pp 19 ff];

Can freedom of the press and freedom of information trump copyright protection?

The second reference (I ZR 139/15 - Afghanistan Papiere) has been made in the context of litigation between the German Government and German newspaper WAZ over the unauthorised publication by the latter of the so called 'Afghanistan Papers', ie confidential military reports on the operations of the Germany armed forces in the region in the period 2005-2012.

According to the relevant press release, the BGH has stayed the proceedings and asked the CJEU to clarify whether and to what extent the assessment of prima facie copyright infringement and the applicability of the exceptions in favour of the press (Article 5(3)(c) of the InfoSoc Directive) and for quotation (Article 5(3)(d) of the same directive) is informed by a fundamental rights analysis.

In particular, can copyright protection bet trumped by the need to safeguard freedom of the press and freedom of information? Or can fundamental rights be even directly invoked to prevent enforcement of copyright?

There is probably no need to note that this question goes to the very heart of copyright protection, and will revive the longstanding discussion around the scope of protection.

Search This Blog

Would you like to receive each post by email?

2,782 readers now receive The 1709 Blog by email circular. Why don't you join them? To subscribe, just type your email address in the box below, then click the 'Subscribe' button

email:

Folllow us on Twitter

The 1709 Blog, and some of the choice comments of its blog team on copyright topics, can now be followed on Twitter at @1709Blog. When we last looked, we had 2,162 followers so, if you sign up, you won't be alone!